Law & Disorder —

Dancing tot prevails over UMG in YouTube fair use case

Judge Jeremy Fogel has granted a partial summary judgment in favor of a mom …

The mother of a dancing toddler is dancing after winning a closely watched copyright case. US District Judge Jeremy Fogel granted partial summary judgment to Stephanie Lenz last week in her battle against Universal Music Group, putting a halt to Universal's attempts to paint Lenz as having "bad faith" and "unclean hands" in her lawsuit. As a result, the doors have been opened for Lenz to collect attorneys' fees in her case, though other damages aren't likely to come Lenz's way.

Universal, the world's largest music label, had sent a takedown notice to YouTube in 2007 over a video clip of Lenz's child bouncing to Prince's "Let's Go Crazy." Watching the (now re-uploaded) clip, it's clear that the music is merely blasting in the background while the video was being recorded and, in some places, the song is barely even recognizable. The initial takedown appears to have been the typical DMCA notice that the labels fire off when they detect a video they believe is infringing, but Lenz pushed back with the help of the Electronic Frontier Foundation.

The EFF and Lenz filed a lawsuit against Universal, arguing that the video was "self-evident noninfringing fair use" and the DMCA takedown was bogus. Universal shot back by saying that even if the clip constituted fair use, it was still infringing and therefore the takedown notice was made in good faith. That's right: Universal said that it was possible for a clip of the music to be used legally (according to US Copyright Law) while also being infringing at the same time, simply because the song itself was copyrighted and owned by Universal.

Universal lobbed numerous arguments at Lenz and the EFF over the next two-and-a-half years. Some of these included a strange argument that the DMCA notice in question was not technically a DMCA notice and therefore could not be litigated as one (Judge Fogel flatly rejected this claim), that it was unreasonable to expect Universal to consider fair use before sending takedown notices (also rejected), and that the EFF itself was more interested in "attention-grabbing press releases" that further its own "philosophical objections" than it was in filing legitimate lawsuits.

On top of that, Universal made numerous affirmative defenses for its actions by telling the court that Lenz acted in bad faith when uploading the video to YouTube because usage of the site does not constitute "private viewing," and that her First Amendment rights were not harmed enough to warrant monetary damages. The label also said Lenz had "unclean hands" for making supposedly false allegations in her lawsuit (though Lenz shot back that Universal should seek sanctions against her if it believes she engaged in misconduct).

In his ruling last week, Judge Fogel analyzed the arguments over damages, but eventually granted Lenz' motions for partial summary judgement. The decision will allow Lenz to recover attorneys' fees from her initial case against the bogus takedown, but not necessarily other damages that may have been incurred while fighting Universal. (In order to win further damages, Lenz would have had to prove that Universal knowingly sent the notice in bad faith.) Still, it's a victory for Lenz and the EFF, and another smackdown against bogus DMCA notices.

Jacqui Cheng
Jacqui is an Editor at Large at Ars Technica, where she has spent the last eight years writing about Apple culture, gadgets, social networking, privacy, and more. Emailjacqui@arstechnica.com//Twitter@eJacqui

That's right: Universal said that it was possible for a clip of the music to be used legally (according to US Copyright Law) while also being infringing at the same time, simply because the song itself was copyrighted and owned by Universal.

The sad part is that these halfwits probably honestly believe this. A prime example of Doublethink if ever there was one.

Universal quote > ... and that the EFF itself was more interested in "attention-grabbing press releases" that further its own "philosophical objections" than it was in filing legitimate lawsuits. < end quote.

Oh my, this made me laugh and cry at the same time .. oh the hypocrisy .. oh the humanity!!

I wonder how Prince feels about this. He's probably applauding, seeing as Universal pretty much took his name and music, and he was left having to make a whole new career for himself. He probably saw the video and thought it was cute. Then he probably heard about what Universal was trying to do, and just rolled his eyes and sighed.

Universal should have been thanking this lady. They should have contacted her, and said "hey, thanks for promoting this old song which nobody's been buying. Can you pretty please with sugar on top add a link to either your video or your youtube comments so folks can go to our web-site and buy this song?" But no, they turn bite the hand that feeds them and make a huge old stink about it. Talk about dumb. So, instead of raking in god-knows-how-much money from a dancing baby promoting the song, they SPEND god-knows-how-much on legal fees trying to prosecute this mother & child.

Holy cow. They need to fire the execs at Universal, because they clearly don't know marketing genius when they see it.

Ever notice how these big corporate websites never leave a contact email or snailmail address on their website…. so's the consumers can't forward these articles to them and go: "Nyah, nyah, nyah!!"

Possibly, if they knew how the viewing public/consumers felt about these stupid lawsuits, they would come down off their ivory towers and start using their real brains instead of the ones in their pants.

Ever notice how these big corporate websites never leave a contact email or snailmail address on their website…. so's the consumers can't forward these articles to them and go: "Nyah, nyah, nyah!!"

Possibly, if they knew how the viewing public/consumers felt about these stupid lawsuits, they would come down off their ivory towers and start using their real brains instead of the ones in their pants.

There are people out there who say "steal media because the big media companies are evil". I've always dismissed these statements out of hand, until now. This case shows that Universal is a truly horrible company run by horrible people. There's no defending their actions in this case. I hope they get pirated to oblivion.

I realized that my post above was stupid and went to edit it, but it's not showing up in the openforum when I try to 'view posts by yoweigh'. Did the recent comment system backend overhaul break the link to the openforum???

Just another reason to confiscate 95% of the assets of all major music label executives and lawyers, and garnish 90% of their wages for the rest of their lives.

Next to the banksters, government bureaucrats, healthcare corp execs, and weapons manufacturers, these people are total scum and deserve to have their rights revoked.

I'm not sure if you are being sarcastic or not, but I agree on the asset seizure. Of course, this would only happen in an actual honest, non-corrupt society which was not owned by the scum themselves. UMG was obviously making shit up as they went along in an effort to "win" this case.

If this article is properly representing the case, it seems pretty bogus to me. And I tend to be pro-copyright.

I am also generally pro-copyright and found most of legal arguments to be non-credible attempts to find a way out on a technicality. It was a take down notice that was enforceable but not against them because it wasn’t technically that kind of take down notice; fair use can be a type of infringement, etc.

I wonder how Prince feels about this. He's probably applauding, seeing as Universal pretty much took his name and music, and he was left having to make a whole new career for himself. He probably saw the video and thought it was cute. Then he probably heard about what Universal was trying to do, and just rolled his eyes and sighed.

Dude...Prince is a copyright nazi. Remember when he covered a Radiohead song at Coachella and then filed takedown notices when people posted self-shot videos of the performance on Youtube?

Just another reason to confiscate 95% of the assets of all major music label executives and lawyers, and garnish 90% of their wages for the rest of their lives.

Next to the banksters, government bureaucrats, healthcare corp execs, and weapons manufacturers, these people are total scum and deserve to have their rights revoked.

I'm not sure if you are being sarcastic or not, but I agree on the asset seizure. Of course, this would only happen in an actual honest, non-corrupt society which was not owned by the scum themselves. UMG was obviously making shit up as they went along in an effort to "win" this case.

Not sarcasm.

Down with the corporatist state. The government no longer represents us, and I'm ashamed to be an "American citizen." Welcome to the new school of slavery. You think you're free, but really you're just some rich asshole's punching bag.

There should be a penalty fine every time a lawyer makes an utterly, prima facie stupid argument like the kind UMG's offered in this case. Fair Use still infringement to be punished? Not That Kind of DMCA Takedown Notice? Don't have to worry about Fair Use before firing off a legally binding takedown request? Pure bullshit. It's a good thing the legal system doesn't operate the way UMG's lawyers want to pretend it does.

"it was unreasonable to expect Universal to consider fair use before sending takedown notices (also rejected)" - Does this mean that we now have precedent requiring content owners to consider and account for fair use before making a DMCA takedown request? Anyone know if this was published in either West or Lexis? I'd love to know how exactly this applied, but haven't been able to find the motion decision.

If that requirement could be added to DMCA takedowns, it may do a fair amount to stop frivolous takedowns. Not something I'd thought of before as a solution, but definitely

On topic, this is a great judgment from a decent judge. An even better judge would've simply awarded her punitive damages based UMG's disgusting behavior (since it was obviously acting in horrible faith) wihtout putting the burden on her, but I'll take this as a win just the same.

I wonder how Prince feels about this. He's probably applauding, seeing as Universal pretty much took his name and music, and he was left having to make a whole new career for himself. He probably saw the video and thought it was cute. Then he probably heard about what Universal was trying to do, and just rolled his eyes and sighed.

Dude...Prince is a copyright nazi. Remember when he covered a Radiohead song at Coachella and then filed takedown notices when people posted self-shot videos of the performance on Youtube?

Yup. I'm a fan of Prince, but he's a nut when it comes to protecting his work. I suppose that because Universal screwed him for so many years, but still.

TRY and find a Prince video on YouTube. Or anywhere on the web, for that matter. You basically can't. He probably works harder to keep his stuff off of YouTube than *anyone* else.

Huh? Isn't "fair use" a definition of "non-infringing" use? In what way is this actually considered logic?

This is the nice thing about Canada - if you sue someone and lose, you pay their legal bills unless there's a really really good reason why you shouldn't. Extortion-by-tort is much more difficult to accomplish in Canada - it's liable to backfire on you wallet.

I have seen a lot of frivolous attempts at class action suits fail at the start because the legal weasels could not put up the necessary bond to assure they could meet the other side's costs.

If the use was ruled fair use, then by definition it was non-infringing as I understand it(or permissible, I'm not a lawyer so I can't say the technical definition of both). That would make the attempt to weasel around it 'bogus' as I stated initially. My caveat here is that Ars' coverage has been exceedingly one-sided on this issue, and reading the article I cannot be certain that they are properly representing UMG's position on the case as opposed to simply clipping out portions designed to make their case look as ridiculous as possible.

Why are the shareholders putting up with this is my question? I mean lawyers aren't cheap, and corporate lawyers.. Well they probably made more on this case then I will make for the next couple decades of work. For what benefit to who? I honestly would like to know whether or not any of the people involved in bringing this to court, really really thought sales would be lost or some harm would happen by this. Who in their sane mind just throws money away like that? It's like suing mcdonalds because your value menu double cheeseburger was cold and spending 40,000 dollars on a lawyer to make them give you a new cheeseburger!

Man, I was going to go out and buy a Prince album, but this clip on youtube has a baby dancing to a few seconds of one of his songs, and it was horribly distorted and almost unrecognizable, but it saves me that dollar I would have spent out iTunes. /sarcasm

The EFF and Lenz filed a lawsuit against Universal, arguing that the video was "self-evident noninfringing fair use" and the DMCA takedown was bogus. Universal shot back by saying that even if the clip constituted fair use, it was still infringing and therefore the takedown notice was made in good faith.

Fair use is an affirmative defence to copyright infringement. Universal is technically correct here.

The EFF and Lenz filed a lawsuit against Universal, arguing that the video was "self-evident noninfringing fair use" and the DMCA takedown was bogus. Universal shot back by saying that even if the clip constituted fair use, it was still infringing and therefore the takedown notice was made in good faith.

Fair use is an affirmative defence to copyright infringement. Universal is technically correct here.

It is a defense to infringement, but fair use actually means "not infringing" under the current statute.

The EFF and Lenz filed a lawsuit against Universal, arguing that the video was "self-evident noninfringing fair use" and the DMCA takedown was bogus. Universal shot back by saying that even if the clip constituted fair use, it was still infringing and therefore the takedown notice was made in good faith.

Fair use is an affirmative defence to copyright infringement. Universal is technically correct here.

Um, no, retard. From the article:

Quote:

Universal shot back by saying that even if the clip constituted fair use, it was still infringing

If it's fair use, then it's not infringing, as defined by law. You're a troll, and an idiot.

Why are the shareholders putting up with this is my question? I mean lawyers aren't cheap, and corporate lawyers.. Well they probably made more on this case then I will make for the next couple decades of work. For what benefit to who? I honestly would like to know whether or not any of the people involved in bringing this to court, really really thought sales would be lost or some harm would happen by this. Who in their sane mind just throws money away like that? It's like suing mcdonalds because your value menu double cheeseburger was cold and spending 40,000 dollars on a lawyer to make them give you a new cheeseburger! Man, I was going to go out and buy a Prince album, but this clip on youtube has a baby dancing to a few seconds of one of his songs, and it was horribly distorted and almost unrecognizable, but it saves me that dollar I would have spent out iTunes. /sarcasm

If the lawyers are 'corporate lawyers' then they are actually on staff collecting a salary regardless of whether or not they are litigating. As such it becomes a management issue, that being whether or not there was something they could have better spent their time on(or whether or not that many lawyers are needed on staff) rather than a financial issue since it would not save them money were they not litigating this case.

Of course hugodrax was joking and being sarcastic. Who in their right mind would not think so. UMG wasted a lot of time and money with this stupid suit but don't worry they will just past the cost onto the consumer. This kind of useless litigation will keep happening as long as Big Content is allowed to shape the copyright system any way it wants to. That's why the copyright system is so broken now.